A petitioner seeking equitable tolling for a one-year filing deadline must show (1) there were extreme circumstances which prevented the petitioner from filing on time, and (2) the petitioner was diligent in pursuing the petitioner’s rights.

Benito Luna, a prisoner in California currently serving life for first-degree murder and attempted robbery, appealed the magistrate judge’s dismissal of Luna’s habeas corpus petition as time barred. Luna argued that it was his lawyer’s misconduct that entitled him to equitable tolling, which would suspend the statute of limitations for a writ of habeas corpus he had filed six years after the filing deadline had passed. After first filing a pro se petition, the magistrate judge agreed to a stay-and-abeyance procedure to put a hold on the filing date to finish the exhaustion process. However, Luna’s appointed counsel, Joseph Wiseman, filed a motion requesting voluntary dismissal of the pro se habeas petition since Wiseman thought that all of Luna’s claims had been unexhausted. The magistrate judge granted the motion for voluntary dismissal, and the case was closed. On appeal, the Ninth Circuit reviewed whether Luna was entitled to equitable tolling. To prove that the doctrine of equitable tolling is necessary, Luna must prove that there were “extraordinary circumstances” that prevented him from filing on time, and that he “diligently pursued his rights.” The panel found that throughout the one-year statutory limitation period for filing a writ of habeas corpus, Wiseman misled Luna into believing Wiseman would file the petitions shortly. Wiseman also wrote Luna letters of assurance, even though Wiseman had not filed the petitions, which caused Luna to miss the one-year deadline. For the next six years, Wiseman continued to mislead Luna into believing that his petition was moving toward a hearing. The panel determined that Luna demonstrated there were extraordinary circumstances due to his lawyer’s professional misconduct, but the panel remanded the case to the district court to address the diligence requirement because the record was insufficient on that issue. VACATED and REMANDED.